The California Family Rights Act (CFRA) is legislation that authorizes eligible employees to take a total of 12 weeks of paid or unpaid job-protected leave during a 12-month period under qualifying circumstances. In 2021, CFRA underwent major changes, with more changes coming for 2022. The changes expanded the number of employers that must comply, expanded the definition of a child and eligible family members and eliminated some protections for employers. Under CFRA, the following has been changed:
Number of Employers Expanded
The amended law applies to employers with as few as five employees who must now provide job-protected leave. FMLA still applies to employers of 50 or more. The distinction is important because employers of 50 or more may be required to provide two types of leave.
Number of Eligible Employees Expanded
CFRA 2021 eliminated the “50 or more employees employed within 75 miles” eligibility requirement and instead the law applies if the employer has five or more employees.
Family Members For Whom an Employee May Take Family Medical Leave Expanded
CFRA permits employees to take leave to care for their own serious health conditions, as well as the serious health condition of a spouse, registered domestic partner, parent, or child. The 2021 amendment added grandparents, grandchildren, and siblings to the list.
In September 2021, AB 1033 added parents-in-law to the list. Effective January 1, 2022, an employee may use CFRA leave to care for “parents-in-law” with serious health conditions.
Definition Of “Child” For Whom an Employee May Take Family Medical Leave Expanded
The 2021 CFRA expansion redefined “child” when determining for whom an employee may take family medical leave. Previously, CFRA required that the “child” be under 18 years of age or, if over 18 years of age, be incapable of self-care because of a mental or physical disability. Now, those limitations are removed, and employees are eligible for CFRA leave to care for their child or a domestic partner’s child with a serious health condition, regardless of the child’s age.
Military Exigency Added as a Qualifying Reason
Employees may now use CFRA leave for a qualifying exigency related to the call to covered active duty or the call to covered active duty of the employees’ spouse, domestic partner, child, or parent in the Armed Forces of the United States.
Elimination Of “Key Employee” Exclusion
CFRA, as well as the Federal Family Medical Leave Act (FMLA), allowed an employer to refuse to reinstate an employee who was on an otherwise protected leave of absence if that employee was among the 10 percent of the highest-paid employees (or “key employee”), and if reinstatement would cause substantial and grievous injury to the employer’s operations. Although FMLA continues to allow it, CFRA has eliminated the “key employee” exemption.
Parents Who Work For Same Employer: New Child Bonding Leave Expanded
CFRA guidelines expanded parental rights to allow leave to bond with a new child. Previously, an employer could insist that parents who each worked for the same employer take only 12 weeks of parental leave between them. Now, parents working for the same employer may each take 12 weeks of baby-bonding CFRA leave (24 weeks total).
Possible 24 Weeks of Protected Family and Medical Leave
Although this is not an expansion of CFRA, it is noteworthy that the effects of these CFRA expansions may require California employers to provide 24 weeks of protected family medical leave, instead of just 12 weeks of leave. For example, an employee may use 12 weeks of CFRA leave to care for a grandparent (or grandchild, parent-in-law or sibling)—such leave is not authorized under FMLA. However, if an employee needs to take an additional 12 weeks to care for a seriously ill spouse, then he or she could do so under FMLA.
Small Business Mediation Pilot Program for CFRA Claims
In 2021, California legislature established a mediation pilot program for CFRA claims for employers with five to 19 employees. The California Department of Fair Employment and Housing (DFEH) administers the program, where either the employer or employee may request mediation. An employer must request mediation within 30 days of receipt of a right-to-sue notice alleging a violation of CFRA, while an employee must request mediation within 30 days of having received the right-to-sue notice. If either the employer or employee requests mediation, the employee cannot pursue a civil action until mediation is complete. In addition, the request for mediation tolls the statute of limitation until the DFEH completes the mediation. This mediation program continues until January 1, 2024, unless extended.
Paid Leave Under PFL Program
CFRA is generally unpaid leave. Employees who take leave under CFRA, may be eligible to apply to the California EDD for paid family leave (PFL) benefits. The PFL program provides up to eight weeks of partial wage replacement to bond with a minor child within one year of the child’s birth or placement, or to care for a seriously ill parent, child, spouse, registered domestic partner, grandparent, grandchild, sibling, or parent-in-law or due to military exigency.
California employers should be aware of these changes to CFRA and update any company handbooks.
Should you have questions about the CFRA updates or other employment-related concerns, feel free to contact Aleshia M. White or any employment attorney at Berliner Cohen, LLP.